Judgment:
1. The Appeal arises out of the Award passed by the Motor Accident Claims Tribunal at Mapusa-Goa in Claim Petition No.22/2003, by which the respondents no.1 and 2 are jointly and severally held liable to pay Rs.3.00 lakhs to the claimants along with interest at the rate of 6 % p.a. from the date of filing of the petition till the realization of the amount along with costs.
2. The relevant facts are:
The 14 year old son of the claimants died on 22/7/2002 succumbing to the injuries sustained due to the accident in which the motor vehicle owned by the original respondent no.2 (appellant no.2) driven by the original respondent no.1 (present appellant no.1) was involved.
3. According to the claimants, the deceased and a girl named Jani were given lift by the appellant no.1 in the tempo bearing no.GA-01-W-5934, when the respondent no.1 was going towards the main road Sanquelim. According to the claimants, when the tempo reached near Bedshedwaddo road, the tempo jumped due to the rubble portion on the road and as the tempo was being driven rashly and negligently, the deceased who was standing in the load box of the tempo, fell on the edge of the tempo and then on the ground and sustained injuries because of which he died.
4. The appellant no.1 filed his written statement of general denial. The appellant no.2 has not filed the written statement. The appellant no.1 had filed an application praying for permission to amend the written statement. However, the learned Presiding Officer had rejected the application. The appellants have raised grounds about the legality of the order passed by the learned Presiding Officer rejecting the application seeking permission to amend the written statement filed by the appellant no.1. However, the appellants have neither prayed for setting aside that order nor a copy of that order is placed on record along with the Memorandum of Appeal.
5. Shri Parag Rao, learned Advocate appearing for the appellants has submitted that the award passed by the Tribunal is unsustainable in law as the learned Presiding Officer has not given any reasons for coming to the conclusion that the tempo was driven rashly and negligently. The learned Advocate has submitted that neither the copy of the panchanama is filed on record nor the panchas are examined by the claimants to support their claim. He has submitted that the learned Presiding Officer has committed an error in rejecting the application praying for amendment to the written statement. He has argued that the learned Presiding Officer has looked into the merits of the proposed amendment while rejecting the application and this is impermissible in law and consequently the order rejecting the application for amendment has to be set aside. He has further submitted that the finding given by the learned Presiding Officer regarding rash and negligent driving is contrary to the facts on the record. According to the learned Advocate, it has come on the record that the girl Jani, who was also sitting in the load box of the tempo along with the deceased had fallen in the tempo itself when the tempo jumped because of the rubble portion on the road. The submission on behalf of the appellants is that the deceased was standing on the edge of the tempo and shouting and waiving at the appellant no.1, who was driving the tempo and as he was standing on the edge of the tempo, he fell down when the tempo jumped. Shri Rao, the learned Advocate for the appellants submitted that the Tribunal has committed illegality in applying the multiplier of 16 and according to the settled law as the deceased was 14 year old, the multiplier of 15 should have been applied. He has further submitted that the deductions as laid down in the Note below Schedule II of the Motor Vehicles Act should have been made and the failure on the part of the learned Presiding Officer to comply with these requirements vitiates the award passed by him. The learned Advocate has relied on the judgments reported in
(i ) (2013) Vol. 9 SCC page 65 in the case of œReshmaKumari and Others Versus Madan Mohan and another?,
(ii) (2007) Vol 11 SCC page 512 in the case of œOriental Insurance Co. Ltd. Vs. Syed Ibrahim and others? and
(iii) (2009 )Vol. 16 SCC page 43 in the case of œNational Insurance Company Ltd. Vs, Gurumallamma and anr.? and has submitted that the award passed by the Tribunal is contrary to the principles laid down in these judgments for calculating the amount of compensation. The learned Advocate submitted that in the alternative the matter has to be remitted to the Tribunal for consideration after setting aside the order passed by the learned Presiding Officer rejecting the application praying for amendment of the written statement and for further consideration on merits according to law.
6. No one appeared for the respondents.
7. After hearing the learned Advocate for the appellants and examining the record with his assistance, the following points arise for determination:
(i) Whether the finding given by the Tribunal on the issue of rash and negligent driving is proper?
(ii) Whether the Tribunal has committed an error in applying the multiplier of 16 instead of the multiplier of 15?
(iii) Whether the Tribunal has erred in not making deduction and for personal expenses as laid down in the Note below Schedule II of the Motor Vehicles Act?
(iv) Whether the order rejecting the application filed by the appellant no.1 praying for amendment of the written statement has to be set aside?
(v) Whether the award passed by the Tribunal is in consonance with the evidence on record?
8. The appellant no.1 had filed written statement which is as follows:
1. œThe contents of para 1 and 2 are not disputed.
2. The contents of para 3 are not admitted.
3. The contents of para 4, concerned applicant is put to strict proof of the same.
4. The contents of para 7 are not disputed.
5. The contents of para 8 to 10 the applicant is put to strict proof of the same.
6. With reference to contents of para 11 to 14 the applicant is put to strict proof of the same as contents thereof are not admitted.
7. The contents of para 15 to 17 are admitted.
8. The applicant is put to strict proof of paras 22 and 23 of the petition.
9. The applicant has filed the false claim.
It is prayed that the petition be dismissed with costs.?
9. The appellant no.2 has not filed any written statement.
10. In view of this, the conclusions of the learned Presiding Officer that there is no denial on the part of the appellant no.1 to the claim made by the claimants cannot be said to be erroneous.
11. Though the appellants have raised Grounds œS? and œT? in the Memorandum of Appeal regarding the legality of the order dated 10/2/2007 passed by the learned Presiding Officer rejecting the application praying for amendment of the written statement, neither a copy of the said order is filed with the Memorandum of Appeal nor any prayer is made in the Memorandum of Appeal. Therefore, I am not in a position to examine the legality and validity of that order. Mr. Rao, the learned Advocate for the appellants submitted that the application filed by the appellant no.1 praying for permission to amend the written statement is rejected on the ground that the appellant no.1 cannot be permitted subsequently to raise specific defence which he had failed to take earlier. According to the learned Advocate this reasoning cannot be upheld and the order has to be set aside. In view of the fact that the copy of the order is not placed on record, I am not in a position to examine the legality of the reasons given by the Tribunal while rejecting the application seeking amendment to the written statement. In my view, the reasons recorded by the learned Presiding Officer in paragraph 10 of the impugned order that the appellant no.1 cannot be permuted to take specific defence which he had failed to take earlier, cannot be said to be erroneous. It is settled law that a party cannot be permitted to wipe out the effect of the pleadings by seeking to amend the pleadings and raise contradictory defences.
12. The learned Advocate for the appellants has submitted that the burden to establish the negligence on the part of the driver or owner of the vehicle is on the claimants, when the claim is made under Section 166 of the Motor Vehicles Act and according to him, the claimants have not discharged their burden and the learned Presiding Officer has committed an error in concluding that the appellant no.1 was driving the tempo rashly and negligently which resulted in the accident without there being any evidence to that effect on record. In support of this submission, the learned Advocate relied on para no.13 .4 of the Judgment in the case of œReshmaKumari ad ors.? (supra). The proposition of law of burden of proof being on the claimants in the case of a claim made under Section 166 of the Motor Vehicles Act cannot be disputed. However, in the facts and circumstances of the case, it cannot be said that the claimants have not discharged their burden and it cannot be said that the learned Presiding Officer has committed an error in coming to the conclusion that the tempo was driven rashly and negligently by the appellant no.1. The appellant no.1 has filed a written statement of general denial and it is settled law that such written statement cannot be a defence controverting the claim. The appellant no.2 has not filed any written statement. Therefore, the conclusions arrived at by the learned Presiding Officer with regard to rash and negligent driving of the tempo by the appellant no.1 is proved in the facts of the case.
13. The submission made on behalf of the appellants that as the deceased was 14 years old, the multiplier of 15 ought to have been applied has to be accepted, in view of the Judgment of the Hon'ble Supreme Court in the case of œReshmaKumari and others Vs. Madan Mohan and anr.? reported in 2013 Vol. 9 SCC page 65. The learned Presiding Officer has overlooked the second Schedule to the Motor Vehicles Act because of which an error in applying the multiplier of 16 has occurred.
14. The submission made by Mr. Rao, the learned Advocate for the appellants relying on the note below the second schedule to the Motor Vehicles Act that 1/3rd of the amount awarded towards compensation should be deducted for the expenses which he would have incurred for maintaining himself if he had been alive, has to be accepted. The amount of compensation having been calculated on the basis of the second Schedule of the Motor Vehicles Act, the note below the second Schedule cannot be given a go-by. The learned Presiding Officer has not adverted to this aspect and it has resulted in erroneous calculations of the amount of compensation receivable by the claimants. There is no challenge to the award of Rs.10,000/- towards the other expenses and therefore, I am not dealing with that aspect.
15. The learned Advocate for the appellants has submitted that while calculating the amount of compensation receivable by the parents, the Tribunal is required to consider the age of the parents. In support of this submission, the learned Advocate for the appellants has relied on the Judgment in the case of œ Oriental Insurance Co. Ltd. Vs. Syed Ibrahim and ors.? reported in 2007 Vol.11 SCC 512. In para 7 of the said Judgment, the Hon'ble Supreme Court has laid down that in case where the parents are the claimants, the relevant factor would be the age of the parents. This issue was considered by the Hon'ble Supreme Court in the case of œ Union of India Vs. Patrichea Jain œreported in 2002 Vol. 6 SCC 281. In that case, as recorded in para 19 of the judgment, the parents of the deceased were 69/73 years old. In the present case, the cause title of the claim petition shows that the claimant no.1 was 48 years and claimant no.2 was 38 years old. Considering the age of the claimants, in my view, the application of multiplier of 15 cannot be said to be improper. The submission on behalf of the appellants in this regard cannot be accepted.
16. In view of the above, the appeal is partly allowed. The award passed by the Tribunal is modified in the following terms:
(a) The calculation of the amount of compensation comes to Rs.2,70,000/-, that is, by applying the multiplier of 15 to the notional income arrived at by the Tribunal of Rs.18,000/- per annum.
(b) Out of the above-mentioned amount of Rs.2,70,000/-, 1/3rd has to be deducted, as required by note to second Schedule to the Motor Vehicles Act, in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. Thus, the claimants are entitled for Rs. 01,80,000/-
(c) In addition, the claimants are entitled for the amount of Rs.10,000/- towards the expenses as given by the Tribunal.
(d) The claimants are entitled for interest calculated @ 6% per annum from the date of filing of the petition till the payment is received by the claimants.
(e) The appellants to pay the proportionate costs throughout to the claimants.
(f) The appeal is partly allowed in the above terms.